Discrimination for whatever reason is generally wholly disapproved of and there is legislation to prevent a raft of different forms of discrimination including age, sex, race, religion and sexual orientation. However it becomes almost Orwellian when two arguments for discrimination appear to be on a collision course as in the cases of the Christian bakers and the Irish “gay” cake and the American wedding cake. Are all forms of discrimination equal or are some more equal than others? As with many things nothing is quite as straightforward as it appears at first glance.
The American Supreme Court has ruled in favour of the gay couple who wished to order a wedding cake for their wedding reception and were rebuffed by the baker, Masterpiece Cakeshop based in Lakewood, Colorado, who informed them that because of the owner’s religious beliefs the firm had a policy of refusing service to anyone wishing to order cakes which celebrated same-sex relationships. Colorado has state law which expressly forbids the refusal of service based on a range of factors, sex orientation included. The ensuing case has ended in the Supreme Court with a ruling that Masterpiece Cakeshop has wilfully and repeatedly considered itself above the law when it comes to discriminating against customers. Sara R. Neel, staff attorney with the ACLU of Colorado said “It’s important for all Coloradians to be treated fairly by every business that is open to the public”
The decision in the American court is almost identical to the decision in the Appeal court in Northern Ireland in 2016 in the case of the Northern Irish bakers, Asher’s, who refused to fulfil an order for a cake which was to be inscribed with the words “support gay marriage” due to the owners perceived conflict with their devout Christian faith. The Appeal Court judges found that the owners, Mr. & Mrs. McArthur, had executed direct discrimination in their refusal to accept the order on the basis that due to the case being associated with the LGBT community and its protected personal characteristic, that of sexual orientation, the actions of the bakers amounted to direct discrimination. It was also pointed out that the bakers were not allowed to provide a service only to those who supported their Christian beliefs, explaining that creating a cake to a customer’s specification whether it was a Halloween cake depicting witches or a cake with a particular football team slogan it did not suggest that the bakers shared the same view or level of support. The case is being referred to the Supreme Court in 2018 despite there being a procedural issue.
Gay Lawyers, Giambrone’s LGBT division, commented “in both cases the customers received less favourable treatment on the basis of their sexual orientation. Both the bakers’ strongly held religious beliefs are, of course, important but religious beliefs should not be permitted to allow a person or organisation to break the law”. There are many areas where discrimination can potentially rear its head and businesses which engage with members of the public must step very carefully and think out their policies before taking any actions that may come back to haunt them. Gay lawyers will be closely following the case in 2018.
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